Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron February 6, 2012 (77 FR 5730), and proposed to supersede AD 2011-08-04, Amendment 39-16654 (76 FR 20498, April 13, 2011). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 5730, February 6, 2012) or on the determination of the cost to the public.

We have revised certain headers throughout this AD. We have also revised the heading for and the wording in paragraph (n) of this AD; this change has not affected the intent of that paragraph.

We reviewed the available data and determined that air safety and the public interest require adopting the AD with the changes described previously—except for minor editorial changes. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 5730, February 6, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 5730, February 6, 2012).

The MCAI specifies to inspect only airplanes having certain serial numbers that are part of the MCAI applicability. Because the affected part could be rotated onto any of the airplanes listed in the applicability, this AD continues to require that the inspection be done on all airplanes. We have coordinated this difference with the TCCA.

We estimate that this AD will affect about 361 products of U.S. registry.

The actions that are required by AD 2011-08-04, Amendment 39-16654 (76 FR 20498, April 13, 2011), and retained in this AD take about 5 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the currently required actions is $153,425, or $425 per product.

We estimate that it will take about 5 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S.operators to be $153,425, or $425 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 5730, February 6, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

On February 28, 2012, the FAA published in theFederal Registera notice of proposed rulemaking to amend controlled airspace at Rock Springs, WY (77 FR 11796). Interested parties were invited to participate in this rulemakingeffort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface, at Rock Springs-Sweetwater County Airport. Airspace reconfiguration is necessary due to the decommissioning of the Rock Springs TACAN. Also, the geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally Current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Rock Springs-Sweetwater County Airport, Rock Springs, WY.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On February 3, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zones; Annually Recurring Marine Events in Coast Guard Southeastern New England Captain of the Port Zone” in theFederal Register(77 FR 5463). We received no comments on the proposed rule.

The legal basis for the rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5 Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.

Many marine events are held annually on a recurring basis on or over the navigable waters within the Coast Guard Southeastern New England COTP Zone. These events include sailing regattas, powerboat races, rowboat races, parades, swim events, air shows, and fireworks displays. This rule will consistently apprise the public of recurring marine events in the Coast Guard Southeastern New England COTP Zone in a timely manner through permanent publication in Title 33 of the Code of Federal Regulations. The Table in this rule lists each annually recurring event requiring a regulated area as administered by the Coast Guard.

By establishing permanent regulations for these events, the Coast Guard eliminates the need to establish temporary rules for events that occur on an annual basis. This rule also amends local regulations for events already contained in 33 CFR Part 100 both to update event information as well as to move fireworks displays to part 165, a citation that better meets the Coast Guard's intended purpose of ensuring safety during these events.

This rule removes sections 33 CFR 100.112, 100.113, 100.116, revises 33 CFR 100.114, and adds a new section, 33 CFR 165.173. The rule removes seven outdated marine events and establishes permanent regulated areas in conjunction with 24 other recurring marine events. The rule applies to each recurring marine event listed in the attached Table in the Coast Guard Southeastern New England COTP Zone. The Table provides the event name, type, and approximate safety zone dimensions as well as approximate dates, times, and locations of the events. The specific times, dates, regulated areas and enforcement period for each event will be provided through the Local Notice to Mariners, Broadcast Notice to Mariners or through a Notice of Enforcement published in theFederal Register.

Three fireworks displays include safety zones which may be enforced 365 days a year. The purpose of these 365 day safety zones is to permit sponsors the flexibility to hold similar fireworks displays at the same location on different days and for different events without the need of creating temporary final rules. These three 365 day Safety Zones can be found in section 1.0 in the Table below.

The particular size of the safety zones established for each event will be reevaluated on an annual basis in accordance with Navigational and Vessel Inspection Circular (NVIC) 07-02, Marine Safety at Firework Displays, the National Fire Protection Association Standard 1123, Code for Fireworks Displays (100-foot distance per inch of diameter of the fireworks mortars), and other pertinent regulations and publications.

No comments were received, and no changes were made to the language contained in the NPRM.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect minimal additional cost impacts to the industry because this rule is not imposing fees, permits, or specialized requirements for the maritime industry to utilize this anchorage area. The effect of this rule is not significant as it only updates currently listed annually recurring events, and serves to permanently publish special local regulations and safety zones for annually recurring events that heretofore had been published on an individual case-by-case basis.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: Owners or operators of vessels intending to transit, fish, or anchor in the areas where the listed annually recurring events are being held.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessels will only be restricted from safety zones for a short duration of time; vessels may transit in portions of the affected waterway except for those areas covered by this rule; and vessels may enter or pass through the affected waterway with the permission of the COTP or the COTP's representative. The Coast Guard has promulgated safety zones or special local regulations in accordance with 33 CFR parts 100 and 165 for all event areas in the past and has not received notice of any negative impact caused by any of the safety zones or special local regulations; and notifications will be made to the local maritime community through the Local Notice to Mariners well in advance of the events. If the event does not have a date listed, then exact dates and times of the enforcement period will be announced through a Notice of Enforcement in theFederal Register. No new or additional restrictions would be imposed on vessel traffic.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a state, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule does not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Any comments made in response to the previously published Notice of Proposed Rulemaking for this action were also considered in arriving at this conclusion. This rule is categorically excluded, under figure 2-1, paragraphs (34)(g) and (34)(h) of the Instruction since it involves establishment of safety zones for annually recurring marine events, including marine related fireworks events and special local regulations for regattas. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display, which are discussed further below. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. For the same reasons discussed in the preceding paragraph, waiting for 30 day notice period run would be impracticable.

Between 10:00 p.m. and 10:20 p.m. on June 2, 2012, a fireworks display will be held on Presque Isle Bay near Erie, PA. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Flagship Niagara Mariners Ball Fireworks. This zone will be effective and enforced from 9:30 p.m. until 11:00 p.m. on June 2, 2012. This zone will encompass all waters of Presque Isle Bay, Erie, PA within a 420 FT radius of position 42°08′22.2″ N and 80°05′15.9″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This temporary final rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Presque Isle Bay, Erie, PA between 9:30 p.m. to 11:00 p.m. on June 2, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities because of the minimal amount of time in which the safety zone will be enforced. This safety zone will only be enforced for 90 minutes in a low commercial vessel traffic area. Vessel traffic can pass safely around the zone.Before the effective period, maritime advisories will be issued, which include a Broadcast Notice to Mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness.

If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, emailSectorBuffaloMarineSafety@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34) (g), of the Instruction, because it involves the establishment of a safety zone. A final environmental analysis checklist and a preliminary categorical exclusion determination are available in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

To benefit the public, the USPTO is revising the Trademark Rules of Practice (37 CFR part 2) and the Rules of Practice for Filings Pursuant to the Madrid Protocol (“Madrid Rules”) (37 CFR part 7) to allow the USPTO to: (1) Upon request, require any specimens, information, exhibits, and affidavits or declarations deemed reasonably necessary to examine a post registration affidavit or declaration of continued use in trademark cases, and assess the accuracy and integrity of the register; and (2) upon request, require more than one specimen in connection with a use-based trademark application, an allegation of use, or an amendment to a registered mark.

The revisions will facilitate the USPTO's ability to verify the accuracy of identifications of goods/services. The accuracy of the trademark register as a reflection of marks that are actually in use in the United States for the goods/services identified in the registration serves an important purpose for the public. The public relies on the register to clear trademarks that they may wish to adopt or are already using. Where a party searching the register uncovers a similar mark, registered for goods or services that may result in confusion of consumers, that party may incur a variety of resulting costs and burdens, such as changing plans to avoid use of the mark, investigative costs to determine how the similar mark is actually used and assess the nature of any conflict, or cancellation proceedings or other litigation to resolve a dispute over the mark. If a registered mark is not actually in use in the United States, or is not in use on all the goods/services recited in the registration, these types of costs and burdens may be incurred unnecessarily. Thus, accuracy and reliability of the trademark register help avoid such needless costs and burdens, and thereby benefit the public.

Specimens of use in use-based trademark applications illustrate how the applicant is using the proposed mark in commerce on particular goods/services identified in the application. Post registration affidavits or declarations of use and their accompanying specimens demonstrate a trademark owner's continued use of its mark in commerce for the goods/services in the registration. As part of a pilot program to assess the accuracy of the identifications of goods/services of currently registered marks, the USPTO anticipates issuing requirements for additional proof of use in conjunction with the review of post-registration maintenance filings for approximately 500 registrations.

On April 26, 2010, the USPTO and the George Washington University Law School hosted a roundtable discussion on the topic of “The Future of the Use-Based Register.” Panelists and audience members explored the implications of the decision of the Court of Appeals for the Federal Circuit inIn re Bose Corp.,580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009), clarifying the high standard for fraud on the USPTO in connection with trademark cases.

A “brainstorming” session at the conclusion of the roundtable resulted in a list of suggestions for how to improve the accuracy of identifications of goods/services. These suggestions were not focused on fraud, as was theBosedecision, but rather on the accuracy of the register. Several participants made the suggestion that the USPTO require additional specimens, or a specific type of proof of use of a mark, for all, or more than one, of the identified goods/services. Such additional requirements could help provide information regarding the extent to which a problemwith inaccuracy exists on the register, and could help discourage inaccuracies.

The Trademark Act gives the Director discretion regarding the number of specimens to require (15 U.S.C. 1051(a)(1), (d)(1), 1058(b)(1)(C), 1141k(b)(1)(C)). Moreover, it requires applicants to comply with rules as prescribed by the Director (15 U.S.C. 1051(a)(4), (b)(4)). Additionally, the Director and USPTO may establish regulations governing the conduct of proceedings in the Office (15 U.S.C. 1123, 35 U.S.C. 2(b)(2)(A)). The current Trademark Rules of Practice and Madrid Rules mandate the submission of one specimen per class in connection with use-related filings (37 CFR 2.34(a)(1)(iv), 2.56(a), 2.76(b)(2), 2.86(a)(3), 2.86(b), 2.88(b)(2), 2.161(g), 7.37(g)). Similarly, the current rules require one specimen to be submitted in connection with an amendment to a registered mark (37 CFR 2.173(b)(3)). In addition, although the current Trademark Rules of Practice allow the USPTO to require additional information or exhibits deemed reasonably necessary to the examination of a pending application (37 CFR 2.61(b)), no counterpart rule exists in the post registration context to facilitate proper examination of an affidavit or declaration of continued use or excusable nonuse.

To ensure that the USPTO may properly examine affidavits or declarations, and the nature and veracity of the use claimed therein, additional specimens or other information or exhibits, such as a photograph of the mark appearing on certain goods, may be needed. Accompanying affidavits or declarations to verify information or exhibits may also be needed. One purpose of the final rule is to allow the USPTO to require trademark applicants or registrants to submit any additional specimens or other information, exhibits and affidavits or declarations reasonably necessary for proper examination. A second purpose of the rule is to allow the USPTO to conduct a limited-duration post registration pilot program to verify the accuracy of claims that a trademark is in use on particular goods/services, as a means to assess and improve the accuracy and integrity of the register. The rule does not focus on fraud issues, but only on the more general concern with ensuring accuracy. A third purpose of the rule is to harmonize the requirements that can be made as part of the examination of use allegations made in post registration maintenance documents with the requirements currently authorized in the examination of use allegations made prior to registration.

A proposed rule was published in theFederal Registeron July 12, 2011, at 76 FR 40839, and in the Official Gazette on August 9, 2011. The USPTO received comments from six intellectual property organizations and four attorneys and/or law firms. These comments are posted on the USPTO's Web site athttp://www.uspto.gov/trademarks/law/comments_requirements_for_specimens_or_evidence.jsp,and are addressed below.

References below to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051et seq.,as amended. References to “TMEP” or “Trademark Manual of Examining Procedure” refer to the 8th edition, October 2011.

Comment:Five commenters expressed support of the USPTO's efforts to ensure the accuracy of the trademark register but expressed concern regarding the lack of more specific criteria signaling when and to what extent an owner might expect a request for additional evidence, specimens, or information under the rule changes. Two commenters speculated that the only way an owner might mitigate these concerns would be to preemptively submit additional specimens in all filings; and another commenter noted that, without further guidelines, the rules could be implemented to create an unfair burden on certain trademark owners.

Response:The USPTO appreciates the commenters' support of the general objective of the rule changes, namely, requiring additional evidence or specimens to allow the USPTO to assess the accuracy and integrity of the register. The USPTO initially intends to accomplish this objective by conducting a pilot in which approximately 500 trademark registrations for which Section 8 or 71 affidavits are being filed will be randomly selected to receive an Office action requiring proof of use of the mark on two additional goods/services per class. If the owner is unable to provide the requested proof of the mark appearing on or in connection with the specified goods/services, those goods/services in question will be deleted from the registration, and the Section 8 or 71 affidavit will be subject to further review.

Because the USPTO and stakeholders initially desire information about the level of accuracy of the register, rather than assuming that widespread inaccuracies exist, the rules permit the USPTO to randomly select for the pilot from among all types of registrations. This will ensure that the resulting assessment is not skewed by consideration of registrations with particular criteria, and that implementation of the rules does not create an unfair burden on specific types of trademark owners.

Contrary to the suggestion by some commenters, owners need not submit additional specimens with all Section 8 or 71 affidavits. The approximately 500 registrations selected to participate in the two-year pilot represent less than 1% of the total number of affidavits usually processed during a typical six-month period. Moreover, owners of the registrations selected will be afforded the usual post registration response period to the Office action requiring additional information.

To address concerns regarding the long-term impact of the rule changes beyond the pilot, the USPTO is amending the rulemaking to indicate that the language authorizing the USPTO to assess the accuracy and integrity of the register will expire two years after the effective date of the final rules on Section 8 and 71 affidavits. This “sunset provision” allows the USPTO the necessary authority to randomly sample Section 8 and 71 affidavits in order to conduct the pilot. Upon expiration of the two-year period, additional specimens and information may be requested when the USPTO deems it reasonably necessary for examination of a particular Section 8 or 71 affidavit. The USPTO is eliminating from the final rulemaking other provisions included in the proposed rule which would have authorized requests for additional specimens and information to assess the accuracy and integrity of the register both prior to registration and in connection with a Section 7 amendment to a registration. In those contexts, the final rules provide that the USPTO may request additional specimens and information only when reasonably necessary for examination. Therefore, although the USPTO is sunsetting its authority to ask randomly for additional specimens and information, it is maintaining authority to probe accuracy when reasonably necessary for proper examination of a particular application or registration.

Comment:Due to the potential burden on trademark owners and broad discretion given to examiners, three commenters suggested a targeted approach in determining when the USPTO would request additional specimens. One commenter requested a provision in the rules or TMEP that the USPTO only require additionalspecimens on special occasions; for example, where identifications include a large number of, or significant disparity in, goods or services, and that the standards for requiring additional specimens for house marks be relaxed as compared to other identifications.

Another commenter suggested that specific guidelines be enacted to direct the exercise of discretion in requesting additional specimens. For example, an examiner should be required to identify some other fact-based reason, beyond the number of goods or services in an application, to justify a request for additional specimens, such as where a Web site does not show use of a mark with all goods or services. Moreover, the TMEP should be revised to include specific guidelines for when an examiner can request additional specimens.

A third commenter suggested that in order to achieve the desired result of a more accurate register, implementation of the proposed rules should be accompanied by guidance describing instances in which additional evidence can be required. The commenter suggested that applications and registrations be flagged for heightened scrutiny and additional specimens or evidence of use if they use class headings in the identification, include unrelated and unlikely goods within a class, use multiple languages on packaging, include a lengthy list of related goods or services, or encompass alphabetically arranged “data dumps” from the ID manual.

Response:The USPTO determined that its objective of assessing the accuracy and integrity of the register could be better reached by randomly selecting the registrations chosen to participate in the pilot rather than targeting a specific subset of registrations. While the USPTO concurs that in the long term, a “targeted” approach may be appropriate, an initial assessment of a wide cross section of all types of registrations will best determine appropriate criteria for targeting. The limited nature of the pilot and “sunset provision” are geared to alleviate concerns regarding potential burdens to trademark owners. The USPTO has opted to initially request proof of use for two additional goods/services per class for registrations selected for the pilot. Thus, the potential burden will not be greater on trademark owners with particular types of registrations, including those for house marks or with lengthy identifications.

Comment:One commenter requested clarification whether trademark owners would face additional fees and surcharges for supplemental filings required under the new rules. The commenter noted that it was unclear whether a response to a request for additional evidence must be completed according to the same timeline as other responses and if an owner would need to pay a deficiency surcharge for a deficiency that did not exist until the request.

Response:No additional fees or surcharges will be required under the new rules. Owners must respond to an Office action requiring additional information or specimens within six months of the issuance date of the Office action, or before the end of the relevant filing period for the Section 8 or 71 affidavit, whichever is later (37 CFR 2.163(b), 7.39(a)). Although such an Office action may address other items unrelated to the pilot program, and those other items may trigger a deficiency surcharge, a request under the new rules pertaining to the pilot would not be considered a deficiency requiring an additional fee.

Comment:One commenter expressed that typical trademark file histories are “too skimpy” with respect to specimens. The commenter further explained that advances in technology, and the USPTO's information technology, have made it easier for trademark owners to submit photographs for specimen use. The commenter, therefore, suggested that specimens be required for each good or service, along with liberal correction of the specimen record. The commenter additionally expressed his preference for a date of use to be listed for every good and service so that priority of use is easier for the public to check.

Response:The USPTO appreciates the commenter's support of its on-line resources. In order to mitigate the potential burden on trademark owners, the USPTO has opted to initially request proof of use for only two additional goods/services per class from participants in the pilot. Failure to provide such proof may result in a further request for additional information or specimens. The results of the pilot will help the USPTO to assess the accuracy and integrity of the register and whether and to what extent it may be necessary to request additional information or specimens on a more routine basis to ensure the accuracy of a registration.

Currently, the USPTO requires dates of use for each class of goods and services. There must be at least one specified item in each class to which the specified dates pertain (37 CFR 2.34(a)(1)(v), 2.76(c), 2.88(c); TMEP section 903.08). It is longstanding Office practice not to require dates of use for each good or service since it would be cumbersome for applicants to designate the dates for each item individually (TMEP section 903.08).

Comment:Another commenter stated that especially in cases where a lengthy identification triggers a requirement for additional information, examination of the accuracy of a claim of use should focus on ensuring the registration accurately reflects the goods or services for which the mark is used, based on all evidence that can be supplied, and not be an exercise designed to delete goods or services from registrations based on a “hyper-technical” analysis of specimens. Trademark owners should not lose rights in marks used in commerce because producing formal specimens can be burdensome, costly, and time-consuming. Deleting such goods and services from a mark in use would detract from, rather than improve, the accuracy of the register.

The commenter, therefore, suggested that the USPTO accept evidence of use that is reasonably sufficient to confirm the accuracy of the list, rather than determining if the evidence qualifies as a formal specimen. Acceptance of this evidence would be a practical way of determining that the claim of use is accurate without imposing an undue burden on trademark owners or an undue allocation of USPTO resources to the examination of additional specimens.

Moreover, the commenter noted that the USPTO's examination of the additional evidence supplied in response to an information inquiry should apply a reasonable standard as to whether the mark on the specimen agrees with the drawing, consistent with recent TTAB decisions and the more forgiving standard applied post registration.

A second commenter similarly proposed that a formal specimen is not necessary to ensure proper examination of claims of use and to assess the possibility of over-claiming. The commenter noted that goods and services should not necessarily be considered improperly included in a claim of use because specimens fail to satisfy rigorous formal requirements as to their sufficiency.

Response:As noted above, in order to assess the accuracy and integrity of the register, the USPTO intends to conduct a pilot in which approximately 500 trademark registrations will be randomly selected to submit proof of use for only two additional goods/services per class in response to an Office action issued after a Section 8 or 71 affidavit is reviewed by the USPTO.Registrations will not be selected for the pilot program's additional inquiry based on either the length or content of the identification in the registration. Instead, the incomplete nature of a trademark owner's response to the initial request for additional information will determine whether further inquiry is necessary. The limited nature of the pilot, in terms of duration, number of registrations impacted, the random selection of registrations for participation, and the amount of additional proof or specimens required, is intended to alleviate concerns regarding the potential burden to trademark owners.

The additional information or specimens will be reviewed according to the generally accepted standards for use in commerce. The USPTO finds no basis to establish a different, less formal, standard for use of the mark in commerce in the context of the pilot, and believes such a distinction would be a disservice to the public. Not only would a new standard for determining what constitutes acceptable use in commerce increase public confusion, but it would also call into question whether a mark is actually used with particular goods or services. The USPTO notes that there is a uniform standard for determining what constitutes an acceptable specimen both prior to and post registration.

Comment:A comment noted that additional specimens or evidence of use should not be required to support identifications that appear in the USPTO ID Manual, even if the particular identification encompasses numerous products, such as “cosmetics” or “furniture.” Evidence of use of the mark on a single product should be sufficient to support inclusion of the phrase in the identification of goods or services.

Response:In conducting the pilot to assess the accuracy and integrity of the register, the USPTO will request that pilot participants submit proof of use for only two additional goods/services per class, with each demonstrating use for a different good or service in the identification. Even if a good or service within an identification is broadly defined, the USPTO will only require one specimen or other proof to demonstrate use for that particular good or service.

The USPTO is amending §§ 2.34(a)(1)(iv), 2.56(a), 2.76(b)(2), 2.86(a)(3), 2.86(b), and 2.88(b)(2) to indicate that the USPTO may, upon request, require more than one specimen, including more than one specimen per class, if the USPTO deems additional specimens reasonably necessary to examine the application or allegation of use. These revisions codify existing practice, where such additional specimens occasionally are requested under § 2.61 as information or exhibits necessary to examination. The Trademark Act gives the Director discretion regarding the number of specimens to require (15 U.S.C. 1051(a)(1), (d)(1)). The USPTO is additionally amending the final rule for § 2.56(a) to substitute the wording “or services” for “or in the sale or advertising of the services in commerce” to be consistent with the language in § 2.173(b)(3), and adding the wording “as reasonably necessary to proper examination” to be consistent with the language in § 2.61(b).

Comment:One commenter stated that requiring applicants and registrants to submit additional specimens is not burdensome, especially in comparison to the exclusive rights and evidentiary presumptions granted to trademark owners and the benefits of an accurate trademark register. The commenter further noted that in the digital age, the costs of obtaining and submitting additional specimens are negligible when the goods or services are being used in commerce as required. The commenter additionally stated that thorough training by the USPTO should mitigate concerns regarding the additional discretion given to examiners and describe with particularity the types of situations where additional specimens may be required. The commenter, therefore, expressed strong support for the rule changes because of the benefits obtained from a more accurate register and relatively small burdens on applicants and registrants. The commenter also noted that further study regarding the amount of “deadwood” on the U.S. trademark register would be valuable to all stakeholders in the trademark community.

Response:The USPTO appreciates the commenter's support of the rule changes and agrees that the public will greatly benefit from an accurate trademark register. As the commenter suggests, the USPTO intends to continue to provide internal and external guidance to mitigate concerns regarding USPTO discretion and provide examples of when additional specimens may be required.

The USPTO is amending § 2.61(b) to indicate that accompanying affidavits or declarations may be required along with information or exhibits. The wording “and such additional specimens” is added to the final rule to explicitly provide for specimen requests. The previously proposed provision that a requirement for additional information may issue, for the USPTO to assess the accuracy and integrity of the register, is not included in the final rule because the USPTO's pilot program will focus exclusively on use allegations in post registration maintenance filings. The USPTO maintains its authority to probe accuracy when reasonably necessary for examination of a particular application.

Comment:Citing TMEP section 904.01(a) and current § 2.61(b), three commenters stated that in the context of pre-registration, examining attorneys already have authority to request additional specimens. Two commenters noted that it is unclear why the amendment to § 2.61(b) is necessary since authority to request additional specimens is already given under the current rule. The third commenter suggested that further guidance on the use of this authority can be provided through examination guides, rather than rule changes. One of the commenters expressed a lack of support for the changes to §§ 2.34, 2.56, 2.61, 2.76, 2.86, or 2.88.

Response:Because the current rule on specimens refers to only one specimen per class and the current rule on information requirements does not explicitly refer to specimens, in revising the rules, the USPTO deems it appropriate to provide explicitly for such specimen requests. Specifically, the additional language allowing for “affidavits or declarations” to be required codifies existing practice, where additional evidence is requested, and explicitly clarifies that the USPTO may verify information or exhibits, when needed.

The additional previously proposed language allowing the USPTO to “assess the accuracy and integrity of the register” was deleted and is not included in the final rule because the USPTO's pilot program will focus exclusively on use allegations in post registration maintenance filings. The USPTO maintains its authority to probe accuracy when reasonably necessary for examination of a particular application.

Comment:A commenter expressed concern that while the goal of amending § 2.61(b) may be to determine the extent to which over-claiming exists pre-registration, the changes to the rule may impact domestic applicants more than Section 44 or 66 applicants, who are not required to submit specimens prior to registration.

Response:Section 2.61(b) is used to require additional information and exhibits from all applicants prior to registration. Although it hasoccasionally been used as a means for requiring additional specimens, it is more commonly used as a means for examining attorneys to request literature, exhibits, and general information concerning the nature of the mark in order to allow for proper examination.SeeTMEP section 814. The additional previously proposed language allowing the USPTO to “assess the accuracy and integrity of the register” was deleted and is not included in the final rule. The USPTO maintains its authority to probe accuracy when reasonably necessary for examination of a particular application. The USPTO will conduct its pilot to assess accuracy in connection with the filing of a Section 8 or 71 affidavit, since such filings are required of all trademark owners.

The USPTO is amending § 2.161(g) and § 7.37(g) to indicate that the USPTO may require more than one specimen in connection with the examination of the affidavit or declaration of continued use. For example, additional specimens may be requested in a case to verify the accuracy and the nature of the use when the identification includes a large number of, or significant disparity in, goods or services. The Trademark Act gives the Director discretion regarding the number of specimens to require (15 U.S.C. 1058(b)(1)(C), 1141k(b)(1)(C)).

The USPTO is adding § 2.161(h) and § 7.37(h) to provide that the USPTO may require such specimens, information, exhibits, and affidavits or declarations as the USPTO deems reasonably necessary to the proper examination of the affidavit or declaration of continued use, or for the USPTO to assess the accuracy and integrity of the register. These provisions are corollaries to § 2.61(b), which currently allows the USPTO to require additional information or exhibits in connection with the examination of a pending application. These provisions also clarify that accompanying affidavits or declarations may be required. The wording “and such additional specimens” is added to the final rule to clarify that the standards applicable to § 2.161(g) and § 7.37(g) are contained in § 2.161(h) and § 7.37(h). The provisions allowing the USPTO to assess the accuracy and integrity of the register will expire two years after the effective date of the final rule.

Comment:Noting that currently there is not a counterpart to § 2.61(b) that would enable the USPTO to request additional specimens post registration, three commenters expressed support of implementing proposed § 2.161(h) and § 7.37(h) to the extent they conform to current § 2.61(b). Two of the commenters further noted that claims of use, post registration, for owners of registrations under Sections 44 and 66 should be examined under the same criteria applied to owners of use-based applications. One commenter further noted that they did not support the proposed changes to § 2.161(g) and § 7.37(g) since they did not conform to current § 2.61(b).

Response:The USPTO appreciates the commenters' support of the rule changes and agrees with the commenters regarding the importance of having post registration corollaries to § 2.61(b). Just as § 2.61(b) was amended to clarify that accompanying affidavits or declarations may be required, this same clarification was added to § 2.161(h) and § 7.37(h) in order to explicitly provide for the USPTO to verify information or exhibits, when needed. Similarly, the amendments to § 2.161(g) and § 7.37(g) were made in order to provide for the USPTO to request additional specimens.

The language in § 2.161(h) and § 7.37(h) allowing the USPTO to “assess the accuracy and integrity of the register” is for the limited purposes of the pilot explained above, and will expire two years after the effective date of the final rule. This “sunset provision” is intended to alleviate concerns regarding the burdens associated with discretionary requests for additional specimens and information to assess the accuracy and integrity of the register. The USPTO maintains its authority to probe accuracy when reasonably necessary for examination of a particular registration.

The USPTO agrees with the commenters that post registration claims of use should be examined under the same criteria regardless of the initial filing basis. The USPTO, therefore, determined that the pilot assessing the accuracy and integrity of the register should be conducted with the filing of Section 8 or 71 affidavits, since such filings are required of all trademark owners.

Comment:Noting that a registration could include many goods and services, one commenter emphasized that submitting many specimens could be time-consuming and burdensome.

Response:As previously noted, the limited nature of the pilot and “sunset provision” are geared to alleviate concerns regarding potential burdens to trademark owners. As proof of use of the mark on only two additional goods/services per class will be required of participants in the pilot, the potential burden will not be much greater on trademark owners with registrations for many goods or services. Failure to provide the requested proof may result in further requests for proof as to additional goods/services in that registration.

Comment:Two commenters noted that prior to registration, if an applicant is unable to provide an acceptable specimen for a Section 1(a) use-based application, the applicant has the option of amending the applicable goods or services to a Section 1(b) intent-to-use basis. The commenters proposed, with a third commenter, that if a trademark owner is faced with a requirement for additional specimens post registration, the USPTO should allow the owner to voluntarily delete the goods or services, as an alternative to providing the specimens, without incurring vulnerability as to the remaining goods or services. This should not be viewed as an admission that the goods or services were improperly claimed in the initial filing as there are a number of reasons why trademark owners may opt not to provide additional evidence of use.

Similarly, one of the commenters noted that if goods or services are deleted from a registration following an information request, the remainder of the registration should not be vulnerable to challenge as to its validity. A commenter further stated that pre-registration for use-based applications, applicants should have the option of asserting a dual Section 1(b) basis for any goods or services subject to a requirement for additional specimens or evidence.

Response:When a trademark owner files a Section 8 or 71 affidavit, the trademark owner is asked to specifically verify if the mark is in use in commerce on or in connection with all of the goods or services listed in the registration. If the mark is not in use with all of the goods or services, the owner is asked to identify the goods or services to be deleted from the registration. Therefore, if a trademark owner is not using the mark with all of the goods or services listed in a registration, and excusable nonuse is not claimed, the goods should be voluntarily deleted from the registration upon the filing of the Section 8 or 71 affidavit as required by the Trademark Act, prior to the USPTO's request for additional information or specimens upon review of the Section 8 or 71 affidavit. As a reminder, 18 U.S.C. 1001 and 37 CFR 11.18 apply to submissions to the USPTO and impose an obligation of reasonable inquiry and truthfulness.

If a registration is selected to participate in the pilot assessing the accuracy and integrity of the register, the trademark owner may at that point voluntarily delete goods or servicesfrom its registration as an alternative to providing the additional information or specimens requested by the USPTO. Such a deletion will not trigger cancellation of the entire registration, but may subject the registration to a further information or specimen requirement by the USPTO to verify the accuracy of the remaining goods or services claimed in the registration. Although the pilot will not apply to applications, applicants always have the option of relying on both Sections 1(a) and 1(b) in the same application, though the applicant may not assert both bases for identical goods or services in the same application.SeeTMEP section 806.02(b).

Comment:One comment noted that failure to provide requested information as to only a portion of the goods or services should not result in cancellation of the entire registration.

Response:The USPTO agrees with this comment and notes that when a registration is selected to participate in the pilot and an Office action issues requiring additional evidence or specimens, a response must be filed within six months of the Office action, or before the end of the filing period for the Section 8 or 71 affidavit, whichever is later (37 CFR 2.163(b), 7.39(a)). If a response is filed but fails to include the required evidence or specimens, the USPTO will deem the Section 8 or 71 affidavit unacceptable as to the goods or services to which the requirement pertained and delete them from the registration. Such a response may also trigger a further requirement for proof of use as to some or all of the remaining goods/services. However, assuming the Section 8 or 71 affidavit is otherwise acceptable, and any requested proof of use as to remaining goods/services is satisfied, the remaining goods/services will be unaffected. By contrast, if no response whatsoever to the Office action is filed within the response period, and no time remains in the statutory filing period, the registration will be cancelled (37 CFR 2.163(c), 7.39(b)). Thus, absent other issues with the affidavit, the registration will not be cancelled unless the owner fails to respond to the Office action or is unable to demonstrate use for any of the remaining goods or services in the registration.

Comment:Citing § 2.161 and § 7.37, an additional commenter indicated that the proposed rules providing for additional specimens could present an equal-protection issue due to their discretionary nature, noting that “when requested by the Office” is not a clear and definite standard.

Response:The Trademark Act gives the Director discretion regarding the number of specimens to require (15 U.S.C. 1051(a)(1), (d)(1), 1058(b)(1)(C), 1141k(b)(1)(C)). The revisions to §§ 2.34(a)(1)(iv), 2.56(a), 2.76(b)(2), 2.86(a)(3), 2.86(b), and 2.88(b)(2) to indicate that the USPTO may, upon request, require more than one specimen, including more than one specimen per class, if the USPTO deems additional specimens reasonably necessary to examine the application or allegation of use, codify existing practice, where such additional specimens occasionally are requested under § 2.61 as information or exhibits necessary to examination.

The revisions to § 2.161(g) and § 7.37(g) to indicate that the USPTO may require more than one specimen in connection with the examination of an affidavit or declaration of continued use are corollaries to the above-referenced pre-registration procedures when additional specimens are necessary to verify the accuracy and nature of the use. The standards applicable to § 2.161(g) and § 7.37(g) can be found in § 2.161(h) and § 7.37(h). Both subsections have been revised to explicitly provide that the USPTO may require specimens, information, exhibits, and affidavits or declarations as “reasonably necessary” for examination or “to assess the accuracy and integrity of the register.” Because these standards are not impermissible or arbitrary, there can be no equal-protection violation.Cf. In re Boulevard Entm't, Inc.,334 F.3d 1336, 1343, 67 USPQ2d 1475, 1480 (Fed. Cir. 2003) (noting that no USPTO equal-protection violation could occur “unless the agency acted pursuant to some impermissible or arbitrary standard”).

Moreover, even regardless of standards, constitutional challenges have been rejected in the trademark-registration context where a determination not to register a mark does not foreclose use of that mark.See In re Mavety Media Grp. Ltd.,33 F.3d 1367, 1374, 31 USPQ2d 1923, 1928-29 (Fed. Cir. 1994);In re McGinley,660 F.2d 481, 484, 211 USPQ 668, 672 (C.C.P.A. 1981).

The USPTO is amending § 2.173(b)(3) to clarify that where an amendment involves a change in the mark, a new specimen must be provided for each class in a multiple-class registration, and additional specimens may be required when necessary, and to add § 2.173(b)(4) to provide that the USPTO may require such specimens, information, exhibits, and affidavits or declarations as the USPTO deems reasonably necessary to the proper examination of the proposed amendment. The term “specimens” is added to § 2.173(b)(4) to clarify that the standards applicable to § 2.173(b)(4) are contained in § 2.173(b)(3). The previously proposed provision that a requirement for additional information may issue, for the USPTO to assess the accuracy and integrity of the register, is not included in the final rule.

Comment:Two commenters noted that because claims of use as to all goods and services are not at issue when a request for amendment of a registration is sought, they do not support the proposed changes to § 2.173.

Response:As claims of use as to all goods and services do not accompany amendments to registrations, the pilot to assess the accuracy and integrity of the register will be conducted with the filing of mandatory Section 8 or 71 affidavits and not optional Section 7 amendments. The revisions to § 2.173(b)(3) clarify that where an amendment involves a change in the mark, a new specimen must be provided for each class in a multiple-class registration. This will allow the USPTO to assess that the amended mark is being used on or in connection with each class of goods or services in the registration. The addition of § 2.173(b)(4) similarly assists the USPTO by providing a means for additional information to be requested, as a post registration corollary to § 2.61(b). The additional previously proposed language allowing the USPTO to “assess the accuracy and integrity of the register” was deleted and is not included in the final rule.

As set forth above, the USPTO intends to conduct a two-year pilot program to verify the accuracy of post registration claims that a trademark is in use on particular goods/services. The USPTO will randomly select approximately 500 trademark registrations for which a Section 8 or 71 affidavit was filed and issue an Office action requiring proof of use of the mark on two additional goods/services per class. Although a declaration will be required to verify the proof of use, one declaration may support all the additional proof. The random selection will include all types of registrations and will represent less than 1% of the total number of affidavits usually processed during a typical six-month period.

Owners of the registrations selected for the pilot will be afforded the usual post registration response period to the Office action requiring additional proof of use and an accompanying standard declaration. Specifically, a response will be due within six months of the Officeaction, or before the end of the filing period for the Section 8 or 71 affidavit, whichever is later (37 CFR 2.163(b), 7.39(a)). Specially trained senior attorneys will conduct the examination for the pilot, reviewing the proof of use according to the generally accepted standards for use in commerce. The assigned senior attorneys may address specific questions or concerns about particular cases. The USPTO also will establish a dedicated mailbox,TMPostRegPilot@uspto.govfor more general questions and concerns relating to the pilot.

If a response is filed but fails to include the required evidence or specimens, the USPTO will deem the Section 8 or 71 affidavit unacceptable as to the goods or services to which the requirement pertained and delete them from the registration. Such a response may also trigger a further requirement for proof of use as to some or all of the remaining goods/services. However, assuming the Section 8 or 71 affidavit is otherwise acceptable, and any requested proof of use as to remaining goods/services is satisfied, the remaining goods/services will be unaffected. By contrast, if no response to the Office action is filed within the response period, and no time remains in the statutory filing period, the registration will be cancelled (37 CFR 2.163(c), 7.39(b)).

After the conclusion of the pilot, the USPTO will share the results as a basis for further consideration and discussion of the level of accuracy of the register. The results of the pilot will help inform whether and to what extent it may be appropriate to request additional information or specimens on a more routine basis to ensure accuracy.

Executive Order 12866:This rule has been determined not to be significant for purposes of Executive Order 12866.

Executive Order 13563:The Office has complied with Executive Order 13563. Specifically, the Office has: (1) Used the best available techniques to quantify costs and benefits, and has considered values such as equity, fairness and distributive impacts; (2) provided the public with a meaningful opportunity to participate in the regulatory process, including soliciting the views of those likely affected prior to issuing a notice of proposed rulemaking, and provided on-line access to the rulemaking docket; (3) attempted to promote coordination, simplification and harmonization across government agencies and identified goals designed to promote innovation; (4) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (5) ensured the objectivity of scientific and technological information and processes, to the extent applicable.

Administrative Procedure Act:This rule merely involves rules of agency practice and procedure within the meaning of 5 U.S.C. 553(b)(A).See Cooper Techs. Co.v.Dudas,536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”) (quoting 5 U.S.C. 553(b)(A));Inova Alexandria Hosp.v.Shalala,244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims);Bachow Commc'ns Inc.v.FCC,237 F.3d 683, 690 (DC Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act). Therefore, this rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d).

However, the USPTO chose to seek public comment before implementing the rule and is providing thirty-day advance publication notice.

Regulatory Flexibility Act:The final rule involves rules of agency practice and procedure. As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601et seq.) is required.See5 U.S.C. 603.

A Final Regulatory Flexibility Act Analysis (“FRFA”) of the final rule is not required; nevertheless, the USPTO has undertaken this FRFA to further describe the minimal effects on any small entities.

The USPTO is requiring: (1) Any specimens, information, exhibits, and affidavits or declarations deemed reasonably necessary to examine an affidavit or declaration of continued use in trademark cases; and (2) upon request, more than one specimen in connection with a use-based trademark application, an allegation of use, an amendment to a registered mark, or an affidavit or declaration of continued use in trademark cases.

These revisions will facilitate the USPTO's ability to verify the accuracy of identifications of goods/services. Specimens of use in use-based trademark applications illustrate how the applicant is using the proposed mark in commerce on particular goods/services identified in the application. Post registration affidavits or declarations of use and their accompanying specimens demonstrate a trademark owner's continued use of its mark in commerce for the goods/services in the registration.

The objective of the final rule is to facilitate the USPTO's ability to verify the accuracy of identifications of goods/services in trademark applications and registrations. The rule ensures that the USPTO may properly examine the nature and veracity of allegations of use made during the trademark application or post registration phase, and upon request, may require additional specimens or other information or exhibits, such as a photograph of the mark appearing on certain goods. Another purpose of the rule is to harmonize the requirements that can be made as part of the examination of use allegations made in post registration maintenance documents, which are currently more limited, with the requirements authorized in the examination of use allegations made prior to registration.

The Trademark Act gives the Director of the USPTO discretion regarding the number of specimens to require (15 U.S.C. 1051(a)(1), (d)(1), 1058(b)(1)(C), 1141k(b)(1)(C)). Moreover, it requires applicants to comply with rules as prescribed by the Director (15 U.S.C. 1051(a)(4), (b)(4)). Additionally, the Director and USPTO may establish regulations governing the conduct of proceedings in the Office (15 U.S.C. 1123, 35 U.S.C. 2(b)(2)(A)). The current Trademark Rules of Practice and the Rules of Practice for Filings Pursuant to the Madrid Protocol mandate the submission of one specimen per class in connection with use-related filings (37 CFR 2.34(a)(1)(iv), 2.56(a), 2.76(b)(2), 2.86(a)(3), 2.86(b), 2.88(b)(2), 2.161(g), 7.37(g)). Similarly, the current rules require one specimen to be submitted in connection with a proposed amendment of a registered mark (37 CFR 2.173(b)(3)). In addition, although the current Trademark Rules of Practice allow the USPTO to require additional information or exhibits deemed reasonably necessary to the examination of a pending application (37 CFR 2.61(b)), no counterpart rule exists in the post registration context to facilitate proper examination of an affidavit ordeclaration of continued use or excusable nonuse.

The USPTO does not collect or maintain statistics in trademark cases on small versus large entity applicants, and this information would be required in order to estimate the number of small entities that would be affected by the final rule. However, the USPTO believes that the overall impact of the rule on applicants and registrants will be relatively minimal.

The final rule applies to any entity filing a use-based trademark application and to any entity filing trademark registration maintenance filings or amendments. With respect to allegations of use in trademark applications, the rules merely codify existing practice, whereby the USPTO already occasionally requests additional specimens or other information under 37 CFR 2.61. Thus, because no change in practice will result from the rules in this regard, they will have no impact in the trademark application context.

After registration, registrants must make periodic filings with the USPTO to maintain their registrations. A Section 8 or 71 affidavit of continued use is a sworn statement that the mark is in use in commerce, filed by the owner of a registration (15 U.S.C. 1058, 1141k). The purpose of the Section 8 or 71 affidavit is to facilitate the cancellation of registrations for marks no longer in use. With respect to post registration maintenance filings, the Office estimates that only a small subset of trademark owners will be required to provide more than one specimen, or information or exhibits in connection with a Section 8 or 71 affidavit. The USPTO is unable to estimate what subset of the owners will be small entities impacted by the rules. In Fiscal Year 2011, 114,808 Section 8 or 71 affidavits were filed.

The final rule imposes no new recordkeeping requirements on trademark applicants or registrants.

Regarding compliance with the final rule, as an initial matter, the USPTO does not anticipate that the rule will have a disproportionate impact upon any particular class of small or large entities. Any entity that has a registered trademark could potentially be impacted by the rule.

Based on additional comment from the proposed rule, the USPTO estimates that in those post registration cases where a requirement for additional information, exhibits, declarations, or specimens is issued, it will take one hour to comply.

While the statement of use is a similar type of filing to those at issue in the final rules applied in the post registration context, as the statement of use involves providing one or more specimens of use and an accompanying declaration, the compliance time for the final rules should be less. Under the final rules applied in the post registration context, the type of fact gathering and review of the nature and extent of the use of the mark that underlies a statement of use will already have occurred. Compliance with the requirement will only necessitate gathering and submitting the evidence to demonstrate what has already been assessed.

Assuming the mark is in use, as claimed, the compliance time involves the length of time to secure a specimen, exhibit (such as taking a digital photograph), information, or declaration, plus any time it takes an attorney to communicate with the client in order to obtain what is required and make the necessary filing with the USPTO. In reality, approximately one-third of applications are filed pro se. These applicants and registrants, therefore, will likely have a lower compliance time than the USPTO has estimated, which assumes the involvement of counsel. These rules do not mandate the use of counsel.

The Office does not estimate any change in compliance cost associated with the final rules with respect to allegations of use in trademark applications, since the USPTO's current practice already allows for this. The rule change merely codifies existing practice.

The USPTO has considered whether and how it is appropriate to reduce any burden on small businesses through increased flexibility. The following options have been considered, but rejected, by the USPTO as ineffective.

The alternative of never requiring additional specimens or other information in connection with Section 8 or 71 affidavits or exempting small entities from such requirements would have a lesser economic impact on small entities, but would not accomplish the stated objective of verifying the accuracy of identifications of goods/services in trademark registrations. As set forth above, the USPTO will rely on the final rule to assess the accuracy of use allegations. This assessment may provide a better sense of whether significant problems may exist with the accuracy of identifications of goods and services. Thus, exempting small entities would prevent the potential consideration of all Section 8 or 71 affidavits for this purpose, and therefore, would not achieve the stated objective of verifying accuracy.

The stated objective of the final rule also facilitates the cancellation of any registrations for marks that are no longer in use, the policy underlying the statutory requirement for Section 8 or 71 affidavits. Exempting small entities from any possible scrutiny regarding use allegations would fail to reach non-use of marks by small entity owners, thereby failing to achieve the objective.

Other options to potentially lessen the impact on small entities have been rejected as ineffective. For example, the USPTO deems unnecessary extended time periods for small entity compliance because there appears to be no reason that compliance with the requirements in the rules would be more time-consuming for small entities, and because the USPTO's standard time period for responding to trademark Office actions allows sufficient time regardless of small entity status.

The USPTO deems any streamlined or simplified compliance mechanism for small entities unnecessary, given the ease of responding to trademark Office actions electronically. Thus, compliance will be as streamlined and simplified as possible for all affected entities. Moreover, where the objective is to verify the accuracy of a claim of use in an affidavit, the requirements of one or more additional examples of the manner of the claimed use, or of other information such as photographic proof already seem to be the least burdensome and complex way to achieve the objective. Additionally, the requirement for submissions in order to assess the accuracy and integrity of the register will expire two years from the effective date of the rule. Accordingly, these post registration requirements will not have a significant economic impact on small entities. Any more minimal requirement would not demonstrate use, and therefore, would not meet the objective to verify use claims.

Use of performance rather than design standards is not applicable to the final rulemaking because the USPTO is notissuing any sort of standard. Rather, the rules will require applicants and registrants to furnish evidence of use, rather than comply with a performance or design standard.

Finally, with respect to allegations of use in trademark applications, the final rules merely codify existing practice, whereby the USPTO already occasionally requests additional specimens or other information under 37 CFR 2.61. Thus, because no change in practice would result from the rules in this regard, any different treatment of small entities in this context would fail to meet the stated objective and likely would generate concern and confusion about a change in practice.

The final rule will not duplicate, overlap, or conflict with any other Federal rules.

Unfunded Mandates:The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector.

Executive Order 13132:This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

Paperwork Reduction Act:This rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.). An information collection request was submitted to OMB under control number 0651-0055 at the time of the Notice of Proposed Rulemaking, and a pre-approval was given. Since that time no substantive changes to the burden have been made. Additionally, the agency will follow up with a change worksheet submission to make all the necessary burden estimate adjustments.

This rulemaking provides for the USPTO to require: (1) Any specimens, information, exhibits, and affidavits or declarations deemed reasonably necessary to examine an affidavit or declaration of continued use or excusable nonuse in trademark cases, or for the USPTO to assess the accuracy and integrity of the register; and (2) upon request, more than one specimen in connection with a use-based trademark application, an allegation of use, or an amendment to a registered mark.

There is no fee impact for submission of specimens. Additional burden due to postage costs for paper submissions for the post-registration Office actions is estimated at $90, for a total increase in fee burden by an estimated $90. The agency estimates the following overall impact on burden: An increase of responses of 500; an increase in burden hours of 485; and an increase in burden hour costs of $164,900.

Comments were invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents.

In response to the first inquiry, whether the collection of information is necessary for proper performance of the functions of the agency, the USPTO received three comments.

Comment:One comment noted that based on the U.S. trademark system, the commenter could understand the contents of the revision, but the commenter indicated that the revision may contradict the Trademark Law Treaty prohibition against submitting evidence of use with a renewal application.

Response:Evidence of use, or excusable non-use, is not a requirement for renewal applications under Section 9, and therefore, the revision does not contradict the Trademark Law Treaty (15 U.S.C. 1059). To renew a registration under Section 9, the owner must submit the requisite fee with the signed renewal form (15 U.S.C. 1059). Evidence of use, or excusable nonuse, is separately required under Sections 8 and 71 between the fifth and sixth year anniversaries after registration and every ten years after registration, or with payment of an additional fee, during the six-month grace period that follows (15 U.S.C. 1058(a), 1141k(a)).

Comment:Another commenter expressed that the collection of additional specimens would ensure a more accurate register and thus benefits the public and brand owners.

Response:The USPTO appreciates the commenter's support of the rule changes and agrees with the commenter regarding the benefit of a more accurate register.

Comment:A third commenter agreed that collecting information regarding the accuracy of the marks on the trademark register is a necessary and proper performance of the USPTO's functions. The commenter noted that an up-to-date register reflecting marks that are actually in use would benefit everyone. The commenter further stated that the USPTO should ensure that the information is gathered consistently and without singling out any particular classes of applications, registrations, or mark owners.

Response:The USPTO appreciates the commenter's support of the information collection. In conducting the pilot, the USPTO will collect the information regarding the accuracy of marks on the register consistently, without singling out any particular classes of applications, registrations, or mark owners. The USPTO intends to ensure consistent information collection by having a small group of specially trained senior attorneys examine the registrations selected for participation in the pilot. As the USPTO also intends to randomly select the registrations examined in the pilot, no type of application, registration, or mark owner will be singled out.

Regarding the accuracy of the agency's estimate of the burden, comments were received from three parties.

Comment:One commenter noted that due to the limited nature of the rule changes, they will not affect the scope of pre-registration trademark searches; and costs will be incurred when attorneys submit the additional evidence required. The commenter additionally requested that foreign applicants be allowed to maintain broader identifications of goods and services when filing a new trademark application based on a home-country registration.

Response:The rule changes codify current pre-registration practice. The USPTO's pilot program will be conducted post registration, and the limited nature of the pilot will alleviate the potential burden on trademark owners. The rule changes will not affect the USPTO's standards for determining the acceptability of identifications of goods and services, which are applied to all applicants and registrants.

Comment:Another comment noted that the burden on applicants to produce additional specimens is not terribly significant in the age of electronic specimens and filings. The burden of producing additional specimens is far less than the burdens imposed on the public and trademark community from an inaccurate register. Any evidence required under the rule changes relates to something anapplicant or registrant should possess or easily document in carrying out existing duties of confirming that goods and services are currently in use.

Response:The USPTO appreciates the commenter's support of the rule changes and concurs that the rule changes create minimal burdens on trademark owners.

Comment:A commenter on the time burden agreed that the time to actually submit specimens or additional evidence will likely be an hour, but stated that the time involved in making the request to a client and reviewing the client's responses will be substantially greater. For mark owners and their counsel, compliance time with the additional requirements may depend on factors such as whether the client is foreign or domestic, the degree of explanation necessary for the client, and the length of the identification. The commenter noted that the USPTO may help alleviate the burden by requiring only one additional specimen or minimal additional information, and by foregoing the need for verifications of the specimens or other information.

Response:The USPTO notes that the estimated time burden for Paperwork Reduction Act purposes is an average encompassing the response time for all trademark owners, taking into account that trademark owners comprise large and small entities, with and without counsel. The USPTO acknowledges that the compliance time for the pilot may be greater than the compliance time for a typical post registration response, and based on the commenter's feedback, the USPTO has increased the estimated burden time for submissions under the pilot to an hour. While the USPTO concurs with the commenter that compliance time may be greater for larger, represented entities, the average also encompasses pro se owners, for whom the compliance time will likely be lower than the USPTO has estimated. The USPTO also notes that as trademark owners are already required to ascertain whether a mark is currently in use with all the goods/services in connection with the filing of a Section 8 or 71 affidavit, any additional requirement to provide proof of such use with select goods/services should not be unduly burdensome.

As an additional means of alleviating the potential burden to trademark owners, only approximately 500 registrations will be selected to participate in the pilot assessing the accuracy and integrity of the register. Moreover, only proof of use of two additional goods/services per class will be required of participants in the pilot. Although a declaration will be required to verify the proof of use, one declaration may support all the additional proof. Owners need not preemptively submit multiple specimens with all trademark filings since the approximately 500 registrations selected to participate in the pilot represent less than 1% of the total number of Section 8 and 71 affidavits processed during a typical six-month period.

In response to the third inquiry, whether there are ways to enhance the quality, utility, and clarity of the information to be collected, the USPTO received two comments.

Comment:One commenter suggested that the USPTO could publish more guidance as to when specimens are required and the type of specimens that are generally acceptable. The commenter additionally noted that the USPTO should provide guidance to both applicants and examiners that specimens for goods that appear to be merely digital mock-ups may be insufficient.

Response:The USPTO intends to provide additional guidance for those trademark owners chosen to participate in the pilot and continue its efforts to provide both internal and external guidance, through the TMEP and examination guides, regarding the general acceptability of specimens. It is long-standing Office policy that a submission that appears not to be actually used in commerce is unacceptable as a specimen. See, e.g., TMEP sections 904.03(i) and 904.04(a) regarding beta Web sites and printers proofs.

Comment:Another comment stated that the USPTO should publicize the nature of the specimens and additional information that will be required to support requests for information under the rule changes. The commenter noted that loosening the restrictions on catalog submissions could assist mark owners requested to provide additional specimens. Moreover, the USPTO should clarify whether requests for additional information will apply to entire classes or specific goods or services within a class. If declarations will be required to support additional specimens, having a uniform format will help ensure higher-quality submissions. Additionally, ensuring uniform levels of inquiry for specimens during prosecution and post registration, and publicizing them in exam guides or the TMEP, would further the goal of an accurate trademark register. Having a particular contact person, or dedicated mailbox, for issues that arise would ensure that practitioners and USPTO employees receive consistent guidance. Lastly, the USPTO should share any statistics kept on the success of the new rule—such as the length of descriptions routinely queried, percentage of applications or registrations queried, and statistics that suggest that “deadwood” on the register is an issue to be addressed.

Response:As noted above, in order to assess the accuracy and integrity of the register, the USPTO intends to conduct a pilot in which approximately 500 trademark registrations will be selected to receive a requirement to submit proof of use for two additional goods/services per class in response to an Office action issued after a Section 8 or 71 affidavit is reviewed by the USPTO. The additional proof will be reviewed according to the same general standards as specimens submitted with a Section 8 or 71 affidavit, with the standard Section 8 or 71 declaration language required to be submitted with the additional proof.

In order to ensure uniformity within the pilot, a small group of specially trained senior attorneys will conduct the examination of the registrations selected for participation in the pilot. The assigned senior attorney handling a particular case may address specific questions or concerns about the case. As suggested by the commenter, the USPTO will establish a dedicated mailbox for more general questions and concerns relating to the pilot. Moreover, the USPTO will share the results of the pilot in the context of further consideration as to whether “deadwood” on the register is an issue.

Regarding ways to minimize the burden of the collection of information to respondents, comments were received from two parties.

Comment:A commenter proposed additional emphasis by the USPTO to educate applicants, in advance, regarding proper specimens and the difference between use-based and intent-to-use applications. The commenter also suggested adding information and warnings on the USPTO Web site and during the electronic application process explaining the types of specimens that may be acceptable. The commenter additionally expressed that the USPTO could suggest to applicants that they may be able to reduce the length of the application process by submitting additional specimens with their applications.

Response:The USPTO appreciates the commenter's suggestions regarding ways to educate the public regarding the trademark process. The USPTO has developed a series of “how-to” videos covering important topics and critical application-filing and registration-maintenance tips. One video entitled “Before You File” covers the different filing bases, while another video focuses exclusively on education about specimens. The videos can be accessed on the USPTO Web site athttp://www.uspto.gov/trademarks/process/TMIN.jsp. The USPTO is continuously striving to improve its electronic systems and to provide helpful information and warnings to guide users throughout the trademark registration process, and provides a link to the instructional video accessed through the Trademark Electronic Application System (“TEAS”) explaining what constitutes an appropriate specimen for a good or service. While applicants are always welcome to submit additional specimens, the USPTO only requires one specimen per class, but agrees that by submitting additional specimens, applicants may in certain circumstances reduce the length of the application process by reducing the need for Office actions requesting acceptable specimens.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons stated in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the USPTO amends parts 2 and 7 of title 37 as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On July 18, 1997 (62 FR 36852), EPA established a health-based PM2.5NAAQS at 15.0 micrograms per cubic meter (µg/m3) based on a 3-year average of annual mean PM2.5concentrations (hereafter referred to as “the annual PM2.5NAAQS” or “the annual standard”). At that time, EPA also established a 24-hour standard of 65 µg/m3(the “1997 24-hour standard”).See40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 PM2.5NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005. The Baltimore Area was designated nonattainment for the 1997 PM2.5NAAQS during this designations process.See40 CFR 81.321 (Maryland).

On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM2.5NAAQS at 15.0 µg/m3based on a 3-year average of annual mean PM2.5concentrations, and promulgated a 24-hour standard of 35 µg/m3based on a 3-year average of the 98th percentile of 24-hour concentrations (the “2006 24-hour standard”). On November 13, 2009, EPA designated the BaltimoreArea as attainment for the 2006 24-hour standard. In that action, EPA also clarified the designations for the PM2.5NAAQS promulgated in 1997, stating that the Baltimore Area was attainment for the 1997 24-hour standard (74 FR 58688). Today's action, however, does not address either the 1997 or the 2006 24-hour standard.

In response to legal challenges of the annual standard promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded this standard to EPA for further consideration.See American Farm Bureau Federation and National Pork Producers Council, et al.v.EPA,559 F.3d 512 (DC Cir. 2009). However, given that the 1997 and 2006 annual standards are essentially identical, attainment of the 1997 annual standard would also indicate attainment of the remanded 2006 annual standard.

On April 25, 2007 (72 FR 20664), EPA promulgated its PM2.5implementation rule, codified at 40 CFR part 51, subpart Z, in which EPA provided guidance for state and tribal plans to implement the 1997 PM2.5standard. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory consequences of attaining the standard, as discussed later.

Under CAA section 179(c), EPA is required to make a determination that a PM2.5nonattainment area has attained by its applicable attainment date, and publish that determination in theFederal Register. On November 23, 2011 (76 FR 72374), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland, proposing to determine that the Baltimore Area has attained the 1997 annual PM2.5NAAQS, based on the most recent three years of complete, quality-assured and certified data and data available to date for 2011. EPA also proposed, based on complete, quality-assured and certified data for 2007-2009 that the Area attained the 1997 annual PM2.5NAAQS by its applicable attainment date of April 5, 2010. EPA's determinations are in accordance with the CAA, EPA's PM2.5Implementation Rule of April 25, 2007 (72 FR 20664), and other applicable regulations. During the comment period on its proposed determinations, EPA received a comment letter from Earthjustice on December 23, 2011. A summary of the comments submitted by Earthjustice and EPA's responses are provided in section III of this document.

EPA has reviewed the ambient air monitoring data for PM2.5, consistent with the requirements contained in 40 CFR part 50 and based on data from the EPA AQS database for the Baltimore Area, for the monitoring periods of 2007-2009, 2008-2010, and for data available to date for 2011. Based upon the most recent three years of complete, quality-assured, quality-controlled, and certified ambient air monitoring data as well as the data available to date for 2011, EPA determines that the Baltimore Area has monitored attainment of the 1997 annual PM2.5standard. EPA also determines, based on complete, quality-assured and certified 2007-2009 monitoring data, that the Area attained the 1997 annual PM2.5NAAQS by its applicable attainment date of April 5, 2010.

Under EPA regulations at 40 CFR 50.7(b), the annual primary and secondary PM2.5standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 μg/m3. The values calculated in accordance with 40 CFR part 50, appendix N, are referred to as design values, and these values are used to determine if an area is attaining the PM2.5NAAQS.

The air quality monitoring network design criteria, established in 40 CFR part 58 appendix D, describe the specific requirements for the number and location of Federal Reference Method (FRM), Federal Equivalent Method (FEM), and Approved Regional Method (ARM) monitoring sites for specific pollutants. The network criteria apply to the Baltimore-Towson, Maryland Metropolitan Statistical Area (hereby “the Baltimore MSA”), which consists of Baltimore City and the counties of Anne Arundel, Baltimore, Carroll, Harford, Howard, and Queen Anne's. Metropolitan areas are determined using the statistical-based definitions provided by the Office of Management and Budget and the Census Bureau. Section 4.7.1 of appendix D requires the Baltimore MSA network to operate at a minimum two PM2.5monitoring sites. Currently, the Baltimore MSA network consists of eight PM2.5FRM monitors and one PM2.5FEM monitor. Thus, EPA has determined that the PM2.5monitoring network in the Baltimore MSA is adequate, in accordance with 40 CFR part 58, appendix D.

Additionally, EPA has determined that the PM2.5Baltimore MSA monitoring network meets all relevant criteria specified in 40 CFR part 58 and is in accordance with the monitoring network plans that have been reviewed and approved by EPA on an annual basis. Additional information about the monitoring network and air quality data was included in the Technical Support Document (TSD) for this action which is available online atwww.regulations.gov,Docket number EPA-R03-OAR-2011-0819.

The commenter, Earthjustice, objected generally to EPA's proposed attainment determination for the 1997 annual PM2.5NAAQS for the Baltimore nonattainment area, on the basis that such determination relies on deficient monitoring data. The commenter asserts that there are various deficiencies with the monitoring network and data.

Comment:The commenter contended that there were specific deficiencies with the monitoring network, citing Maryland's 5-Year Network Assessment. The commenter asserts that Maryland has not assured that adequate mandatory continuous monitors for PM2.5are in place in the Baltimore MSA as required by 40 CFR part 58 appendix D, section 4.7.2. The commenter asserts that Maryland Department of Environment (MDE) explains in its assessment that failure to meet these requirements is caused by a “technicality” while testing a continuous monitor, AQS ID: 24-510-0040 (Oldtown), in the Baltimore MSA. The commenter indicates it is unclear whether the affected monitor was collecting adequate continuous PM2.5data during this testing period and whether this data was used in the clean data finding.

Response:The network design criteria, in 40 CFR part 58, appendix D, section 4.7.2, requires that the State must operate in the PM2.5network continuous monitors that are at least one-half of the minimum number of the required sites, of which at least one must be collocated with a required FRM monitor. According to Table D-5 of appendix D, the Baltimore MSA is required to have a minimum of two PM2.5monitoring sites, and thus is required to have one continuous monitor in the network. To meet this requirement, one PM2.5Beta Attenuation Mass (BAM) FEM monitor is operated in the Baltimore MSA monitoring network which is collocated with an FRM monitor at the monitoring site AQS ID: 24-510-0040 (Oldtown).

During July 2008 thru July 2010, the continuous BAM FEM monitor was tested to ensure that it was operating properly. Thus, during this time the continuous monitor was designated as a Special Purpose Monitor (SPM). The test consisted of a correlation study to compare the data from the FRM monitor with the continuous BAM FEM data.The study showed that the data being collected by the continuous BAM FEM monitor correlated sufficiently well, and therefore, continuous PM2.5data from the Oldtown site was shown to be adequate. As a result, as of July 2010, the continuous monitor was no longer designated as an SPM, and is now considered a collocated monitor. The continuous BAM FEM monitor is currently collocated with an FRM monitor at the Oldtown site and data from these monitors during 2008-2010 is presented in Table 1.

Because Oldtown is a middle scale station which has not been determined to be a population-oriented site representative of many such locations throughout the Baltimore MSA, the data from that site is not used for comparison to the annual PM2.5NAAQS.See40 CFR 58.30. Although the Oldtown monitoring site was not considered for the attainment determination, the monitoring data from Oldtown recorded PM2.5levels below the level of the annual PM2.5NAAQS during the time period of 2008-2010. Similarly, the 2011 preliminary data from both the FRM and BAM FEM in Oldtown showed levels below the annual PM2.5NAAQS.Seethe publicly available FRM/FEM data comparison tool provided by EPA athttp://www.epa.gov/airquality/airdata/ad_rep_frmvfem.html.This tool shows that the FRM and continuous BAM FEM at the Oldtown site have good comparability. For additional information about testing continuous monitors,seethe Technical Memorandum, “Implementing Continuous PM2.5Federal Equivalent Methods (FEMs) and Approved Regional Methods (ARMs) in State or Local Air Monitoring Station (SLAMS) Networks,” inhttp://www.epa.gov/ttn/airs/airsaqs/memos/Use%20of%20PM2.5%20FEMS%20and%20ARMs%20in%20SLAMS%20Network.pdf.

Comment:The commenter raises, with regard to the monitoring network adequacy of the Baltimore MSA, that, as of September 2010, Maryland had not satisfied the requirement to designate a monitoring station in the Baltimore MSA as a maximum PM2.5concentration site.Id.40 CFR part 58, appendix D, section 4.7.1(b)(1). MDE's 5-year network assessment states that it planned to classify the monitoring site Id. No. 24-510-0040 (Oldtown) as the highest concentration PM2.5site for the Baltimore MSA.SeeMaryland 5-Year Network Assessment.

Response:Maryland satisfies the maximum PM2.5concentration site requirements, set forth in 40 CFR part 58, appendix D, section 4.7.1(b)(1) for the Baltimore MSA which requires at least one monitoring station at a population-oriented area of maximum concentration. The Maryland 5-Year Network assessment identifies two possible locations in the Baltimore MSA as highest concentration: the Oldtown monitoring station and the Fire Station 20 monitoring station, AQS ID 245100008 (seeMaryland 5-Year Network Assessment, page 53). Data from the Fire Station 20, which is a neighborhood scale site representing community wide air quality, was used in the determination of attainment. However, because Oldtown does not meet the siting requirements for comparing the data to the annual PM2.5NAAQS, the monitoring data from that site was not used in the determination of attainment. Even if the data from the Oldtown monitoring was eligible for comparison to the annual PM2.5NAAQS, it shows that the site is attaining the annual PM2.5NAAQS.SeeTable 1.

Comment:The commenter asserts that by not using the monitoring data from site Id. No. 24-510-0040 (Oldtown), EPA's attainment determination is inconsistent with the 1992 EPA Guidance regarding NAAQS attainment determinations.SeeMemorandum of September 4, 1992 from John Calcagni, Director, Air Quality Management Division, to EPA Air Division Directors, “Procedures for Processing Requests to Redesignate Areas to Attainment.” This memorandum explicitly states that data used to demonstrate attainment “should be the product of ambient monitoring that is representative of the area of highest concentration.”

Response:EPA did use monitoring data from a population oriented monitoring site of expected maximum concentration, i.e., the Fire Station 20 monitoring site (AQS ID: 24-510-0008). As part of this assessment, data for 2008-2010 from Fire Station 20 site show concentration levels that are below the level of the annual PM2.5NAAQS at this maximum concentration site. Because the monitoring site Id. No. 24-510-0040 (Oldtown) is not a population oriented monitor representative of community wide air quality, the data from that site is not eligible for comparison to the annual PM2.5NAAQS. Moreover, monitoring data from site Id. No. 24-510-0040 (Oldtown) is currently used in determining Baltimore Area's compliance with the PM2.524-hour NAAQS. Additionally, even if EPA had reviewed data from the Oldtown location for comparison to the annual PM2.5NAAQS, the data for 2008-2010 reflects that the concentration levels at the site are below the level of the annual PM2.5NAAQS at this location. Thus, this would not have changed EPA's action to find that the Baltimore nonattainment area currently is attaining the NAAQS. The Oldtown data is provided in Table 1, but was not used in determining attainment of the Baltimore Area for the annual PM2.5NAAQS.

Comment:The commenter asserts that MDE did not provide reasoned justification that the existing monitoring network was sufficient to capture representative PM2.5concentrations and populations exposures for Baltimore City, after removing the monitor ID 24-510-0035 (FMC-Fairfield), which was originally classified as a neighborhood monitor.

Response:The Baltimore MSA has an adequate PM2.5monitoring network. 40 CFR part 58, appendix D requires two monitors in the Baltimore MSA, which currently has eight monitors in place. Further, the monitoring network meets all relevant criteria specified in part 58 and is in accordance with the monitoring network plans that havebeen reviewed and approved by EPA on an annual basis.

The FMC-Fairfield monitor was shut down due to the demolition of the FMC-Fairfield Agricultural Plant. At the time of the FMC-Fairfield closure in 2008, the FMC-Fairfield monitor was showing annual means that attained the annual PM2.5standard. Because the Baltimore MSA already had sufficient number of PM2.5monitors in its network, MDE did not need to relocate the FMC-Fairfield monitor to another site. Also, contrary to commenter's assertion, EPA's supporting documents include sufficient justification for removing the monitor from this location.SeeTSD attachments, “MDE's Analysis regarding Closure of the FMC PM2.5Monitor” and “Notification by Maryland Department of the Environment (MDE) regarding the closure of the FMC PM2.5Monitor.” MDE explained that the FMC-Fairfield monitoring site was no longer meeting the population-oriented siting requirements that reflect community wide air quality. When originally located, the FMC-Fairfield monitor met these siting requirements. However, conditions around the monitor location changed over time and the 2000 census data shows that the population density around the FMC-Fairfield monitor has declined. FMC-Fairfield, thus, no longer met its intended purpose of providing data for neighborhood scale/population exposure. Data from the monitoring site ID 24-510-0035 (FMC-Fairfield) was comparable to the monitoring site Id. No. 24-510-0008 (Fire Station 20). Since 2008, Fire Station 20 has shown annual PM2.5means below the annual NAAQS.

Comment:The commenter asserts that the monitoring site Id. No. 24-510-0008 (Fire Station 20), which they believe is representative of the communities surrounding the FMC-Fairfield monitoring site, did not satisfy the completeness criteria for the 2010 period.

Response:The commenter's statement that the data at monitor location Id. No. 24-510-0008 (Fire Station 20) does not satisfy the completeness criteria for 2010 is incorrect. As explained in the TSD, the missing data from the primary monitor at this location for the first quarter of 2010 was replaced with data from a collocated monitor at the same site location to meet the completeness monitoring data requirement of 40 CFR part 50, appendix N. Missing data from a primary monitor at a site does not necessarily mean that the data at the monitoring site is incomplete. When data from a collocated monitor is used to substitute for missing data at a primary monitor, the data at the monitor location is considered to be complete if EPA regulations and guidance are followed for performing the necessary data substitution. Specifically, section 3.0 of 40 CFR part 50, appendix N specifies that if a valid 24-hour measurement is not produced from the primary monitor for a particular day, but a valid sample is generated by a collocated monitor, then that collocated value shall be considered part of the site data. In order to replace the missing data, the collocated substitution was followed, in accordance with the procedures explained in “Guideline on Data Handling Conventions for the PM NAAQS,” EPA-454/R-99-008 (April 1999). The substitution requires replacing the missing data from the primary monitor with collocated data for the same year and quarter, provided that the site has valid data for at least 50 percent of the scheduled number of samples for each quarter for all three years, and that the emissions and meteorology for the quarters to be substituted are comparable to the emissions and meteorology for the quarters in question. Air quality data from Fire Station 20 monitoring site met these criteria and thus the collocated data sampled at the site was used to complete the missing data from the primary monitor. Therefore, monitoring site Id. No. 24-510-0008 (Fire Station 20) has complete data for the year 2010.

First, EPA determines that Baltimore Area has attained the 1997 annual PM2.5NAAQS, based on the complete, quality assured and certified data from 2008-2010, and data available to date in AQS for 2011. Pursuant to 40 CFR 51.1004(c), this determination of attainment will suspend the requirements for Maryland to submit for the Baltimore Area an attainment demonstration and associated RACM/RACT, RFP plan, contingency measures, and other planning SIP revisions related to the attainment of the standard for so long as the Area continues to attain the 1997 annual PM2.5NAAQS. In addition, EPA is finalizing a separate and independent determination that the Baltimore Area attained the 1997 annual PM2.5standard by the applicable attainment date of April 5, 2010, thereby satisfying EPA's obligation pursuant to section 179(c)(1) of the CAA to make a determination of whether the Area attained the standard by the applicable attainment date.

Finalizing this action does not constitute a redesignation of the Baltimore Area to attainment for the 1997 annual PM2.5NAAQS under CAA section 107(d)(3). Further, finalizing this action does not involve approving a maintenance plan for the Baltimore Area, nor does it involve a determination that the Area has met all the requirements for redesignation under the CAA. Therefore, the designation status of the Baltimore PM2.5nonattainment area will remain nonattainment for the 1997 annual PM2.5NAAQS until such time as EPA takes final rulemaking action to determine that such portions meet the CAA requirements for redesignation to attainment.

This action finalizes attainment determinations based on air quality data and does not impose any additional requirements. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249,November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This determination that the Baltimore Area has attained the 1997 p.m.2.5NAAQS may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. The following outline is providedto aid in locating information in this preamble.

On February 28, 2012, EPA published a Notice of Proposed Rulemaking (NPR) for the State of Vermont. See 77 FR 11914. The NPR proposed approval of the Vermont State Implementation Plan (SIP) that addresses regional haze for the first planning period from 2008 through 2018. It was submitted by the VT DEC on August 26, 2009, with a supplemental submittal on January 3, 2012. Specifically, EPA proposed to approve Vermont's August 26, 2009 SIP revision, and its supplement, as meeting the applicable implementing regulations found in 40 CFR 51.308. EPA also proposed to approve Vermont's revised Section 5-221, “Prohibition of Potentially Polluting Materials in Fuel,” and incorporate this regulation into the Vermont SIP.

A detailed explanation of the requirements for regional haze SIPs, as well as EPA's analysis of Vermont's Regional Haze SIP submittal was provided in the NPR and is not restated here.

EPA received one comment on the NPR. It was from the U.S. Forest Service in support of the proposed approval of Vermont's Regional Haze SIP submittal.

EPA is approving Vermont's August 26, 2009 SIP revision and supplemental submittal on January 3, 2012, as meeting the applicable implementing regulations found in 40 CFR 51.308. In addition, EPA is approving Vermont's revised Section 5-221, “Prohibition of Potentially Polluting Materials in Fuel,” and incorporating this regulation into the Vermont SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See Clean Air Act § 307(b)(2), 42 U.S.C. 7607(b)(2).

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

The following outline is provided to aid in locating information in this preamble.

On February 28, 2012, EPA published a Notice of Proposed Rulemaking (NPR) for the State of Rhode Island. See 77 FR 11798. The NPR proposed approval of the Rhode Island State Implementation Plan (SIP) that addresses regional haze for the first planning period from 2008 through 2018. It was submitted by the RI DEM on August 7, 2009. Specifically, EPA proposed to approve Rhode Island's August 7, 2009 SIP revision as meeting the applicable implementing regulations found in 40 CFR 51.308.

A detailed explanation of the requirements for regional haze SIPs, as well as EPA's analysis of Rhode Island's Regional Haze SIP submittal was provided in the NPR and is not restated here.

EPA received comments on the NPR from the U.S. Forest Service and Dominion Energy, Inc. in support of ourproposed approval of Rhode Island's Regional Haze SIP submittal.

EPA is approving Rhode Island's August 9, 2009 Regional Haze SIP revision as meeting the applicable implementing regulations found in 40 CFR 51.308.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See Clean Air Act § 307(b)(2), 42 U.S.C. 7607(b)(2).

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

The following outline is provided to aid in locating information in this preamble.

On March 15, 2012 (77 FR 15329), EPA published a Notice of Proposed Rulemaking (NPR) for the State of Maine. The NPR proposed approval of Maine's RACT demonstration for satisfying the State's RACT SIP revision obligation as of September 15, 2006 and proposed approval of Maine's five other submitted SIP regulations aimed at reducing VOC emissions. Amongst Maine's other submitted SIP regulations are two amended regulations and one newly adopted regulation, covering a total of four of the 11 Control Techniques Guidelines (CTGs) issued since 2006. The state must still address the remaining seven CTGs.

A detailed explanation of the applicable NOXand VOC RACT CAA requirements with respect to the 1997 8-hour ozone standard, as well as EPA's analysis of Maine's RACT SIP submittal and Maine's other VOC regulations were provided in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving Maine's RACT demonstration as meeting the state's SIP revision obligation as of September 15, 2006 with respect to the 1997 8-hour ozone standard. EPA is also approving and incorporating into the Maine SIP an amendment (A-459-71-D-A, also referred to as “Amendment #2”) of the Air Emission License A-459-72-B-R issued to the McCain Foods USA, Inc., Tatermeal facility.

In addition, EPA is also approving the following Maine regulations and incorporating them into the Maine SIP: Revised Chapter 131, Cutback Asphalt and Emulsified Asphalt Regulation; revised Chapter 123, Control of Volatile Organic Compounds from Paper, Film and Foil Coating Operations; revised Chapter 129, Surface Coating Facilities; revised Chapter 152, Control of Volatile Organic Compounds from Consumer Products; and newly adopted Chapter 161, Graphic Arts—Lithography and Letterpress Printing.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the NationalTechnology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001et seq.,and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act.This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act.As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification.This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism.This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform.This interim rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 65 is amended to read as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act.This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act.As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification.This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism.This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform.This final rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is amended as follows:

Spiny dogfish (Squalus acanthias) were declared overfished by NMFS in 1998. Consequently, the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) required NMFS to implement measures to end overfishing and rebuild the spiny dogfish stock. The Mid-Atlantic Fishery Management Council(MAFMC) and the New England Fishery Management Council (NEFMC) developed a joint fishery management plan (FMP) that was implemented in 2000. As a result of the conservation measures in the FMP, the spiny dogfish stock was declared to be successfully rebuilt in 2010.

The regulations implementing the FMP at 50 CFR part 648, subpart L, outline the process for specifying an annual catch limit (ACL), commercial quota, possession limit, and other management measures for a period of 1-5 years. The annual quota is allocated to two semi-annual quota periods, as follows: Period 1, May 1 through October 31 (57.9 percent); and Period 2, November 1 through April 30 (42.1 percent).

The MAFMC's Scientific and Statistical Committee (SSC) reviews the best available information on the status of the spiny dogfish population and makes recommendations on acceptable biological catch (ABC). This recommendation is then used as the basis for catch limits and other management measures developed by the MAFMC's Spiny Dogfish Monitoring Committee and Joint Spiny Dogfish Committee (which includes members of the NEFMC). The MAFMC and NEFMC then review the recommendations of the committees and make their specification recommendations to NMFS. NMFS reviews those recommendations, and may modify them if necessary to ensure that they are consistent with the FMP and other applicable law. NMFS then publishes proposed measures for public comment. NMFS proposed the specifications set here in theFederal Registeron March 19, 2012 (77 FR 15991), with a 30-day public comment period. NMFS received six comments, which are addressed below.

A detailed description of how the 2012 spiny dogfish ABC and associated specification measures were derived, and the range of alternatives analyzed, are provided in the proposed rule and in its supplementary materials (seeADDRESSES), and are not repeated here. The final approved specifications for the 2012 spiny dogfish fishery are described below.

NMFS is implementing the following specifications for the spiny dogfish fishery for the 2012 fishing year:

1. The spiny dogfish annual catch limit (ACL) is 44.737 million lb (20,292 mt);

2. The spiny dogfish commercial quota is 35.694 million lb (16,191 mt); and,

3. The spiny dogfish possession limit remains at 3,000 lb (1,361 kg) per trip.

Based on the percentage allocations specified in the FMP, quota Period 1 (May 1 through October 31) is allocated 20.667 million lb (9,374 mt), and quota Period 2 (November 1 through April 30) is allocated 15.027 million lb (6,816 mt). The significant quota increase from fishing year 2011 quota, in conjunction with the status quo possession limit, should help avoid prolonged fishery closures, extend the fishing season, reduce regulatory discards, and maximize revenues for vessels that land spiny dogfish.

NMFS received six comments to the proposed specifications. These commenters offered five distinct comments.

Comment 1:Two Massachusetts-based commercial fishing organizations commented that they support the proposed spiny dogfish commercial quota and possession limit.

Response:NMFS agrees that the final commercial quota and status quo possession limit meet the objectives of the Spiny Dogfish FMP and will maximize landings for the fishery during the 2012 fishing year.

Comment 2:The North Carolina Division of Marine Fisheries commented that it supports the proposed quota, but recommended that the possession limit be increased to 4,000 lb (1,815 kg), consistent with the MAFMC's recommendation.

Response:NMFS disagrees that the spiny dogfish possession limit should be increased. NMFS considers the 3,000 lb (1,361 kg) possession limit to be the most appropriate spiny dogfish possession limit for the 2012 fishing year. As noted above, NMFS believes that the status quo possession limit in conjunction with the increased quota has the greatest likelihood of prolonging the fishing season, and of preventing mid-season fishery closures and their associated negative economic impacts. NMFS expects these specifications will distribute spiny dogfish landings and revenues across the fishing year, rather than increasing per-trip revenues under a shorter fishing season. The Atlantic States Marine Fisheries Commission (Commission) has also implemented this possession limit in state waters for 2012.

Comment 3:One fishing industry commenter argued that the science used in the spiny dogfish stock assessment and for setting specifications is flawed. The commenter suggested that spiny dogfish biomass has been underestimated, and that catch limits for female spiny dogfish should be between 66 and 75 million lb (30,000-34,000 mt), while catch limits for male spiny dogfish should be between 70 and 100 million lb (32,000-45,000 mt). The commenter further argued that the high biomass of male dogfish contributes to predation on spiny dogfish pups and more valuable groundfish species, and suggested that a male-only spiny dogfish fishery should be implemented.

Response:National Standard 2 of the Magnuson-Stevens Act requires that fishery management measures be based upon the best available scientific information. The final catch limits and specifications being implemented by this rule represent the best available scientific information. They are based on the results of peer-reviewed stock assessments, the recommendations of the SSC, and the goals of the FMP. A description of how the 2012 spiny dogfish catch limits were calculated is given in the proposed rule for this action. There is no scientific justification for specifying the catch limits at the levels recommended by the commenter, and such high limits would be inconsistent with the requirements of the FMP. The issue of a male-only spiny dogfish fishery is beyond the scope of this rule, and would require an amendment to the FMP. NMFS notes that the MAFMC and NEFMC are currently developing Amendment 3 to the Spiny Dogfish FMP, but have removed from the range of alternatives consideration of male-only spiny dogfish management measures.

Comment 4:One comment submitted by a conservation organization opposed the proposed spiny dogfish commercial quota, and recommended that the quota only be increased to 30 million lb (13,608 mt), consistent with the Commission's initial 2012 quota recommendation. The commenter cited numerous concerns with the status of the spiny dogfish stock, including vulnerable life history traits, poor pup production, projected future declines in spawning stock biomass, declines in the average size of pups and mature females, skewed sex ratios, and several sources of uncertainty in the stock assessment. The commenter argued that the proposed quota represents an unnecessarily high increase that is not in the best long-term interests of the fishery. Additionally, the commenter suggested that the MAFMC's risk policy used to calculate the spiny dogfish ABC (i.e., using the catch level that corresponds to a 40-percent probability of overfishing) should be more precautionary given the stock's inherent vulnerability. For comparison, the commenter noted that the AtlanticHighly Migratory Species Fishery Management Plan for coastal sharks uses a 70-percent probability of success to select management measures, and there should be less than a 20-percent chance of a management measure resulting in a stock decline.

Response:NMFS agrees that the commercial quota of 35.694 million lb (16,191 mt) recommended by both Councils represents a dramatic increase from earlier quota levels that favors short-term yield over long-term fishery stability. NMFS also acknowledges that all of the other listed concerns with spiny dogfish stock status are valid. Most importantly, spiny dogfish spawning stock biomass is projected to decline significantly between 2014 and 2020 due to poor pup production. However, while the proposed quota represents the upper limit of the range of acceptable quota alternatives, it is not expected to result in overfishing. If spiny dogfish biomass declines in future years, harvest levels will have to be appropriately reduced in those years. While a 30-million-lb (13,608-mt) quota may be a more precautionary and stabilizing recommendation, the quota set here still reflects the best available scientific information, and is consistent with the recommendations of the SSC and the requirements of the FMP and Magnuson-Stevens Act. Therefore, there is no compelling biological or legal justification to reject the commercial quota recommendation of both Councils.

Comment 5:One public commenter argued that the spiny dogfish quota should be reduced by 50 percent, to 10 million lb (4,536 mt). No justification was provided for this reduction.

Response:NMFS disagrees that such a reduction in spiny dogfish harvest levels is necessary at this time. Spiny dogfish spawning stock biomass has been increasing in recent years, and is currently above target levels. The proposed increase in quota is supported by the best available scientific information and follows the ABC and specification process defined in the FMP.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a determination that this rule is consistent with the Spiny Dogfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Office of Management and Budget has determined that this rule is not significant for the purposes of Executive Order 12866.

Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, relevant analyses contained in the action and its EA, and a summary of the analyses completed to support the action in this rule. A copy of the analyses done in the action and EA are available from the Council (seeADDRESSES). A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in the preamble to the proposed rule and this final rule and is not repeated here.

Six comments were received on the proposed rule. For a summary of the comments, and NMFS's responses to them, see the Comments and Responses section above. None of the comments raised issues or concerns related to the IRFA, and no changes were made to the rule as a result of the comments.

The increase in the spiny dogfish commercial quota would impact vessels that hold Federal open access commercial spiny dogfish permits, and participate in the spiny dogfish fishery. According to MAFMC's analysis, 2,942 vessels were issued spiny dogfish permits in 2010. However, only 326 vessels landed any amount of spiny dogfish. While the fishery extends from Maine to North Carolina, most active vessels were from (in descending order) Massachusetts, New Jersey, New Hampshire, Rhode Island, New York, North Carolina, and Virginia.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.

The purpose of this action is to increase spiny dogfish catch limits and landings, consistent with the best available science, thereby extending the duration of the fishing season and increasing revenue relative to the status quo. The action is expected to maximize the short-term profitability for the spiny dogfish fishery during the 2012 fishing year, without jeopardizing the long-term sustainability of the stock. Therefore, the economic impacts resulting from the action are expected to be positive, and there were no other alternatives considered that could have further increased the economic yield from the fishery while remaining constant with the Magnuson-Stevens Act and the goals of the FMP.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of permits for the spiny dogfish fishery. The guide and this final rule will be available upon request, and posted on the Northeast Regional Office's Web site atwww.nero.noaa.gov.